Citation Nr: 0913967
Decision Date: 04/15/09 Archive Date: 04/24/09
DOCKET NO. 05-30 209 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been received to reopen
a previously denied claim of entitlement to service
connection for a low back disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Purdum, Associate Counsel
INTRODUCTION
The Veteran had active service from May 1968 to January 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from June 2004 and January 2005 rating
decisions of the Department of Veterans Affairs (VA),
Regional Office (RO), in Montgomery, Alabama, that denied the
Veteran's application to reopen his previously denied claim
of entitlement to service connection for a low back
disability on the basis that new and material evidence had
not been submitted.
FINDINGS OF FACT
1. The claim of entitlement to service connection for a low
back disability was denied by the RO in a June 1983 rating
decision. The Veteran was notified of that decision, but he
did not perfect a substantive appeal.
2. Evidence received since the June 1983 rating decision
relates to an unestablished fact necessary to substantiate
the claim, and raises a reasonable possibility of
substantiating the claim.
3. The Veteran's current low back disability was incurred in
or aggravated by his active service.
CONCLUSIONS OF LAW
1. The unappealed June 1983 rating decision that denied the
Veteran's claim of service connection for a low back
disability is final. 38 U.S.C.A. § 7105 (West 2002); 38
C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2008).
2. Subsequent to the June 1983 RO rating decision, new and
material evidence has been received to reopen the claim of
entitlement to service connection for a low back disability.
38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7104 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2008).
3. The criteria for service connection for a low back
disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38
C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist the Appellant
In light of the favorable disposition, the Board finds that a
discussion as to whether VA's duties to notify and assist the
Veteran have been satisfied is not required. The Board finds
that no further notification or assistance is necessary, and
that deciding the appeal at this time is not prejudicial to
the Veteran.
New and Material Evidence
The Veteran's claim of entitlement to service connection for
a low back disability was previously denied in a June 1983
rating decision. The RO declined to reopen the Veteran's
previously denied claim in June 2004 and January 2005 rating
decisions. Although the RO has determined that new and
material evidence sufficient to reopen the previously denied
claim of entitlement to service connection for a lower back
condition was not submitted, the Board must consider the
question of whether new and material evidence has been
received because it goes to the Board's jurisdiction to reach
the underlying claim and adjudicate the claim de novo.
Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett
v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds
that no such evidence has been offered, that is where the
analysis must end. Id.
In a June 1983 rating decision the RO denied the Veteran's
claim of entitlement to service connection for a low back
disability. A finally adjudicated claim is an application
which has been allowed or disallowed by the agency of
original jurisdiction, the action having become final by the
expiration of one year after the date of notice of an award
or disallowance, or by denial on appellate review, whichever
is the earlier. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§
3.160(d), 20.302, 20.1103 (2008). Thus, the June 1983
decision became final because the Veteran did not file a
timely appeal.
The claim of entitlement to service connection for a low back
disability may be reopened if new and material evidence is
submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The
Veteran filed this application to reopen his claim in July
2003. Under the applicable provisions, new evidence means
existing evidence not previously submitted to agency decision
makers. Material evidence means existing evidence that, by
itself or when considered with the previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a) (2008). In
determining whether evidence is new and material, the
credibility of the new evidence is presumed. Justus v.
Principi, 3 Vet. App. 510 (1992).
The evidence before VA at the time of the prior final
decision consisted of the Veteran's service treatment
records, including only his physical examination at entry
into service, one instance of dental treatment, and one
instance of general medical treatment; a Doctor's Statement,
dated in November 1982 and completed by the Veteran's private
chiropractor by request of the RO; private treatment records
dated from March 1973 to May 1975; and a Report of Accidental
Injury, dated in November 1982 and completed by the Veteran.
The RO found that there was no evidence of the claimed
injury, and the claim was denied.
The Veteran applied to reopen his previously denied claim of
entitlement to service connection for a low back disability
in July 2003. The Board finds that the evidence received
since the last final decision in June 1983 is not cumulative
of other evidence of record, relates to an unestablished
fact, and raises a reasonable possibility of substantiating
his claim.
Newly received evidence includes private treatment records
dated in September 2004, which include an opinion of the
Veteran's private physician that his current low back
disability is related to his claimed in-service injury;
statements, dated in February 2005 and submitted by the
Veteran's brother and father; and Memorandum, dated in July
2007, indicating a formal finding on the unavailability of
the Veteran's service treatment records. That evidence is
both new and material, as it demonstrates evidence of a
relationship between the Veteran's current low back
disability and his active service, which was not shown at the
time of the previous final denial.
The new evidence was not previously considered by agency
decision makers, is not cumulative or redundant, relates to
an unestablished fact necessary to substantiate the claim,
and raises a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.303. New evidence is sufficient to
reopen a claim if it contributes to a more complete picture
of the circumstances surrounding the origin of a Veteran's
disability, even where it may not convince the Board to grant
the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
Accordingly, the previously denied claim of entitlement to
service connection for a low back disability is reopened
because the Board finds that the new evidence is material.
Service Connection
The Veteran asserts entitlement to service connection for a
low back disability because the condition has been chronic
since an in-service injury in August 1969, when he had been
pinned between two trucks while serving in the Republic of
Vietnam.
According to the National Personnel Records Center (NPRC),
the vast majority of the Veteran's service treatment records
are unavailable. When a Veteran's records have been
determined to have been destroyed, or are missing, VA has an
obligation to search for alternative records that might
support the Veteran's case. See Cuevas v. Principi, 3 Vet.
App. 542 (1992). In this case, multiple attempts were made
to secure the Veteran's service treatment records. However,
each of these requests for information received a negative
response, and the Veteran was duly informed of the
unavailability of his records.
The Board recognizes that there is a heightened obligation to
assist a claimant in the development of his case, a
heightened obligation to explain findings and conclusions and
to consider carefully the benefit of the doubt rule in cases,
such as in this situation, in which records are presumed to
have been or were destroyed while the file was in the
possession of the government. O'Hare v. Derwinski, 1 Vet.
App. 365, 367 (1991).
The Board notes that while the caption of the July 2007
Memorandum indicating a formal finding on the unavailability
of the Veteran's service treatment records names the Veteran
in the instant case, the body of the document, however, names
another Veteran. Support documentation dated at that time
indicates that the Veteran was to be sent a Memorandum
informing him as to the unavailability of his service
treatment records. Thus, the Board finds that the name of
the other Veteran in the body of the document is a data entry
mistake, and the July 2007 Memorandum correctly informed the
Veteran in the instant case as to the unavailability of his
service treatment records.
Although there is no evidence of the in-service injury,
including evidence of treatment for same, the Veteran is a
decorated combat Veteran who is entitled to a statutory
provision that eases the evidentiary burden for combat
Veterans by permitting the use, under certain circumstances,
of lay evidence. The record also contains a medical opinion
that indicates that the Veteran's current low back disability
is likely related to service, specifically, the claimed in-
service August 1969 injury.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§ 1110 (West 2002); 38 C.F.R. § 3.303 (2008). The law also
provides that service connection may be granted for any
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection for certain chronic diseases, including
arthritis, will be rebuttably presumed if they are manifest
to a compensable degree within one year following active
service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West
2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309 (2008).
For the showing of chronic disease in service, there must be
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, evidence of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
Generally, to establish service connection, there must be:
(1) medical evidence of a current disability; (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease;
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury. See Hickson
v. West, 12 Vet. App. 247, 253 (1999).
In cases where a Veteran asserts service connection for
injuries or disease incurred or aggravated in combat, 38
U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R.
§ 3.304(d), are applicable. This statute and regulation ease
the evidentiary burden of a combat Veteran by permitting the
use, under certain circumstances, of lay evidence. If the
Veteran was engaged in combat with the enemy, VA shall accept
as sufficient proof of service connection satisfactory lay or
other evidence of service incurrence, if the lay or other
evidence is consistent with the circumstances, conditions, or
hardships of such service. 38 U.S.C.A. § 1154(b) (West
2002); 38 C.F.R. § 3.304(d) (2008). To establish service
connection, however, there must be medical evidence of a
nexus between the current disability and the combat injury.
See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007);
Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996).
In determining whether service connection is warranted for a
disability, VA is responsible for determining whether the
evidence supports the claim or is in relative equipoise, with
the Veteran prevailing in either event, or whether a
preponderance of the evidence is against the claim, in which
case the claim is denied. 38 U.S.C.A. § 5107 (West 2002);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran's most recent clinical diagnosis, as to his low
back disability, is degenerative joint disease with
diskogenic changes secondary to remote trauma. Such
diagnosis was rendered at the time of private treatment dated
in September 2004.
The Veteran's service personnel records contain indicia of
combat service. While the Veteran's Armed Forces Of The
United States Report Of Transfer Or Discharge (DD Form 214)
is silent for any award or military occupational specialty
indicating combat service, a March 1983 Correction to DD Form
214, Certificate Of Release Or Discharge From Active Duty (DD
Form 215) indicates that the Veteran was awarded the Combat
Action Ribbon. As such, 38 U.S.C.A. § 1154(b) and its
implementing regulation, 38 C.F.R. § 3.304(d), are
applicable.
Having established the first two elements necessary to
establish service connection, the Board will focus on the
third element, i.e., whether there is medical evidence
linking the Veteran's current low back disability to his
active service. To establish service connection, there must
be medical evidence of a nexus between the current disability
and the combat injury. See Dalton v. Nicholson, 21 Vet. App.
23, 36-37 (2007); Libertine v. Brown, 9 Vet. App. 521, 523-24
(1996).
The Veteran's private physician, in treatment records dated
in September 2004, reported that magnetic resonance imaging
(MRI) testing of the Veteran's back revealed degenerative
joint disease that would certainly suggest remote trauma.
The physician considered that, besides the in-service injury
in 1969, the Veteran denied any other trauma to the back.
The physician opined that it is well within reason that the
Veteran's current back problems were related to the remote
trauma to his back that he sustained in an accident in
Vietnam in August 1969.
In adjudicating this claim, the Board must assess the
competence and credibility of the Veteran's account of having
low back symptoms since service. See Washington v.
Nicholson, 19 Vet. App. 362, 368-69 (2005); Coburn v.
Nicholson, 19 Vet. App. 427, 432-33 (2006). In this
capacity, the Board finds the Veteran is competent to do so.
Layno; 38 C.F.R. § 3.159(a)(2). Further, the Board also
concludes that the Veteran is a credible historian regarding
his in-service injury and chronic symptomatology since
service. Indeed, the Veteran's statements regarding the
origin of his lower back injury and the symptomatology he has
experienced since service are consistent throughout the
treatment records dated as early as 1982. See Dalton v.
Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7
Vet. App. 478, 511 (1995), aff'd per curiam, 78 F.3d 604
(Fed. Cir. 1996) (When determining whether lay evidence is
satisfactory, the Board may consider internal consistency,
facial plausibility, consistency with other evidence
submitted on behalf of the Veteran, and, if a hearing has
been held, the demeanor of the witness).
Further inquiry could be undertaken with a view towards
development of the claim so as to obtain an additional
medical opinion. However, under the benefit of the doubt
rule, where there exists "an approximate balance of positive
and negative evidence regarding the merits of an issue
material to the determination of the matter," the Veteran
shall prevail upon the issue. Ashley v. Brown, 6 Vet. App.
52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204,
206-207 (1994).
As such, and with the resolution of all reasonable doubt in
the Veteran's favor, the Board concludes that service
connection is warranted for a low back disability.
ORDER
New and material evidence having been received, the claim for
service connection for a low back disability is reopened.
Service connection for a low back disability is granted.
____________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs